Farrow and Farrow (Child support)
[2025] ARTA 248
•14 February 2025
Farrow and Farrow (Child support) [2025] ARTA 248 (14 February 2025)
Applicant/s: Ms Farrow
Respondent: Child Support Registrar
Other Parties: Mr Farrow
Tribunal Number: 2024/BC028605
Tribunal: Member K Hamilton
Place:Brisbane
Date:14 February 2025
Decision:The Tribunal affirms the decision under review.
CATCHWORDS
CHILD SUPPORT – percentage of care – change to the likely pattern of care – withholding care – existing percentage of care determinations not revoked – interim period not applied – new determinations made – reasonable action – special circumstances for late objection – decision under review affirmed
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
Ms Farrow and Mr Farrow are the parents of [Child 1] (born August 2005).
On 20 August 2019, Ms Farrow advised Services Australia – Child Support (Child Support) that she had 0% care and Mr Farrow 100% care of [Child 1] from 22 July 2019. Ms Farrow stated that Mr Farrow had been withholding care of [Child 1] since 22 July 2019.
Prior to this notification, Child Support had recorded Ms Farrow as having 49% care of [Child 1] and Mr Farrow 51% care of [Child 1], in line with court orders dated [in] September 2019 that provided for the parties to have equal care of [Child 1].
On 29 August 2019, Ms Farrow advised Child Support that she did not want the care of [Child 1] changed. On the same day, Child Support made a decision to not change the care percentage for [Child 1].
Mr Farrow objected to this decision on 4 December 2019. On 19 March 2020, a Child Support objections officer allowed the objection and determined that the care percentages for [Child 1] would be changed to 100% care to Mr Farrow and 0% care to Ms Farrow from 22 July 2019, notified on 20 August 2019.
On 24 September 2024, Ms Farrow applied to the Administrative Appeals Tribunal (the AAT) seeking further review.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The matter was heard on 21 January 2025. Ms Farrow attended the hearing in person accompanied by a support person. Mr Farrow participated in the hearing by telephone.
The Tribunal had regard to relevant documents produced by Child Support, numbered as pages 1–604. Following the hearing, Ms Farrow provided further documents to the Tribunal, which were numbered by the Tribunal as pages A1–A17. For reasons that will be evident below, the Tribunal determined that no response was required from Mr Farrow to these further documents, which will be provided to Mr Farrow along with a copy of this decision.
ISSUES
The relevant legislative provisions are contained in the Child Support (Assessment) Act 1989 (the Assessment Act).
Care decisions are made by Child Support pursuant to the Assessment Act. If a person applies for an administrative assessment of child support and has had, or is likely to have, a pattern of care for the child during the relevant care period, then the decision-maker must determine that person’s percentage of care for the child during the care period: section 50 of the Assessment Act.
If a responsible person who was to have at least regular care of a child during a care period (at least 14% care) under a care determination made under section 50, had no care of the child, or a pattern of care that was less than regular care of the child, the care determination must be revoked and a new determination made: section 54G in Division 4, Subdivision C of the Assessment Act. However, a determination can only be revoked under section 54G where the other responsible person is making the child available to the first responsible person.
Where section 54G does not apply, a responsible person’s existing percentage of care must be revoked if the actual care of the child does not correspond with the existing percentage of care and, if a new percentage of care were determined, the responsible person’s cost percentage would change: section 54F in Division 4, Subdivision C of the Assessment Act.
The legislation requires that if a determination of a responsible person’s percentage of care is revoked under Division 4, Subdivision C, and the responsible person for the child has had, or is likely to have, no pattern of care for the child during a care period, their percentage of care must be determined to be 0%: section 49 of the Assessment Act.
In some limited circumstances where a written care arrangement (such as a parenting plan or court order) is not being complied with, and the person with reduced care is taking reasonable action to ensure the care arrangement is complied with, a person’s percentage of care may be determined based on the care arrangement for an interim period, rather than being based on actual care: section 51 and section 53 of the Assessment Act.
The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide reflects government policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The issues which arise in this case are:
· Should the existing care percentage determinations be revoked?
· Does an interim care period apply?
· What are the new percentage of care determinations for Ms Farrow and Mr Farrow?
· Are there special circumstances which prevented Mr Farrow lodging an objection within 28 days?
CONSIDERATION
Ms Farrow told the Tribunal that she has not had any care of [Child 1] since 22 July 2019. However, she submitted that Mr Farrow was withholding care of [Child 1] in breach of court orders providing for the parties to have equal care of [Child 1].
Ms Farrow said that she sought legal advice to have [Child 1] returned to her care. Ms Farrow produced a letter from her lawyers ([named]) dated 8 October 2019 requiring that care return to the pattern provided for under the existing court orders. Ms Farrow also provided evidence that she had consulted [Agency 1] on various dates including, relevantly, 30 July 2019. A further referral to [Agency 1] was made by Ms Farrow’s psychologist on 14 December 2019, however [Agency 1] indicated the next consultation with Ms Farrow after 30 July 2019 was on 15 November 2022.
Ms Farrow said that she did not take any further action – for example, to file an application in court to regain care of [Child 1] – as she would have had to pay more to get a recovery order from the court, and she had exhausted her funds.
Mr Farrow agreed that Ms Farrow did not have any overnight care of [Child 1] from 22 July 2019. However, Mr Farrow said that this was [Child 1’s] choice and she did not want to see her mother. He denied that he was withholding care of [Child 1].
The Guide at 2.2.3 notes that “The Registrar will generally only be satisfied that it is the child’s action that is preventing care from occurring when the child is 15 years or older (although in some circumstances younger children will be considered). The choice of the child does not remove the requirement for the other parent or carer to make the child available to the person who was to have regular care of the child in the case.”
I am not satisfied on the evidence before me that Mr Farrow was making [Child 1] available for care by Ms Farrow from 22 July 2019.
Issue 1: Should the existing care percentage determinations be revoked?
I am satisfied on the evidence of both parties that there was a change in [Child 1’s] pattern of care from 22 July 2019 and that Ms Farrow had no overnight care of [Child 1] from that date.
As I am not satisfied that Mr Farrow was making [Child 1] available for care by Ms Farrow from 22 July 2019, it is not permissible for the pre-existing care determination to be revoked under section 54G of the Assessment Act.
The change in the pattern of care from 22 July 2019 meant Ms Farrow had 0% care of the child and had the effect of decreasing Ms Farrow’s cost percentage and increasing Mr Farrow’s cost percentage. Accordingly, the pre-existing care determination must be revoked under section 54F of the Assessment Act.
Issue 2: Does an interim care period apply?
In limited circumstances, section 51 of the Assessment Act allows for 2 care percentage determinations to be made in relation to a responsible person. Among other criteria, in order for an interim care determination to be available, the person with reduced care must be taking reasonable action to ensure that the previous care arrangement is complied with.
Section 53 of the Assessment Act provides that section 51 does not permit an interim care determination to be made after the end of the “maximum interim period” (a variable period defined by section 53A, but generally no more than 14 weeks). Paragraph 53(1)(c), as it stood at the relevant time when there was a change in [Child 1’s] care, also provided that an interim care determination could not apply where a determination has been revoked under section 54F or 54H.
In Child Support Registrar v CMU23 [2024] FCA 109, the Federal Court found that a plain reading of paragraph 53(1)(c) meant that an interim care period could not be applied under section 51 following revocation of an existing care determination under either section 54F or section 54H.[1]
[1] Subsequent to the Federal Court’s decision in Child Support Registrar v CMU23 [2024] FCA 109, Parliament passed the Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024. This Act repealed paragraph 53(1)(c) of the Assessment Act, with the effect that an interim care period could be applied where the change in care occurred on or after 29 March 2024.
In practical terms, this means that an interim care period can only be applied under section 51 of the Assessment Act at the start of a child support case.[2] As there was a previous care determination made by Child Support regarding the care of [Child 1], which I have found must be revoked under section 54F of the Assessment Act, paragraph 53(1)(c) of the Assessment Act does not permit any interim care period to apply from 22 July 2019. This is so even if I were satisfied that Ms Farrow was taking reasonable action to have the care arrangements set out in the court order complied with.
Issue 3: What are the new percentage of care determinations for Ms Farrow and Mr Farrow and when do they apply?
[2] See also Child Support Guide at 2.2.4.
For the reasons stated above I find that Ms Farrow had no pattern of care of [Child 1] from 22 July 2019 and her care percentage of [Child 1] is 0% from 22 July 2019: section 49 of the Assessment Act. Mr Farrow had 100% care of [Child 1] from 22 July 2019: section 50 of the Assessment Act.
Pursuant to paragraph 54F(3)(b) of the Assessment Act, as the change in care was notified on 20 August 2019, which is more than 28 days after that change occurred on 22 July 2019, there are different dates of effect for the revocation of each parent’s pre-existing care percentage determinations.
Revocation of the pre-existing percentage of care determination of 51% for Mr Farrow takes effect the day before the change of care day, that is, on 21 July 2019. Revocation of the pre-existing percentage of care determination of 49% for Ms Farrow takes effect the day before the notification of the change in care, that is, on 19 August 2019.
Pursuant to section 54B of the Assessment Act, new percentage of care determinations apply from the day immediately after revocation of the previous percentage of care determinations. Therefore, a new percentage of care determination of 100% for Mr Farrow applies from 22 July 2019 and a new percentage of care determination of 0% for Ms Farrow applies from 20 August 2019.
Issue 4: Are there special circumstances that prevented Mr Farrow from lodging an objection within 28 days?
Child Support’s decision to not record new care percentages based on Ms Farrow’s notification of a change in care was made on 29 August 2019. Mr Farrow’s objection to that decision was made on 4 December 2019. This means that if a favourable decision was made on review, that decision can only take effect from the day on which Mr Farrow lodged his objection, unless there are special circumstances which prevented him from lodging an objection: section 87AA of the Child Support (Registration and Collection) Act 1988.
Mr Farrow told Child Support that he did not object when the decision was first made as he was hoping that care would resolve after a while and [Child 1] would return to her mother. Mr Farrow told the Tribunal that when it became evident that this had not occurred, and that [Child 1] intended to stay with him permanently, he advised Child Support of this. Child Support would not treat this as a new notification and said that he needed to lodge an objection to the earlier decision made by Child Support, which he did. There were no other circumstances that prevented him from lodging an objection within 28 days.
I find that there were no special circumstances that prevented Mr Farrow from lodging an objection within 28 days of being notified of Child Support’s decision of 29 August 2019.
As I have reached the same conclusion as Child Support, the decision under review will be affirmed.
DECISION
The decision under review is affirmed.
| Date(s) of hearing: | Tuesday, 21 January 2025 |
| Representative for the Applicant: | Self |
| Representative for the Other party: | Self |
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